By Decision No. Up-217/14, dated 7 February 2018, the Constitutional Court decided on the constitutional complaint of Caritas Slovenia filed against the judgments by which the Administrative and Supreme Courts dismissed the action that the complainant filed against a decision of the Communication Office of the Government by which its application to the Call for Tenders for the Co-financing of Information and Communication Education Activities of Non-governmental Organisations on European Matters in 2011 was rejected.
The Communication Office rejected the complainant’s application because it did not fulfil a condition determined in the call for tenders, namely it was not a non-governmental organisation founded on the basis of the Societies Act, Foundations Act, or Institutes Act. In judicial proceedings, both courts held that this condition was not determined contrary to Article 13 of the Agreement between the Republic of Slovenia and the Holy See on Legal Issues (hereinafter referred to as the Agreement). According to the courts, the Agreement ensures charity and social ecclesiastical foundations and organisations parity with other similar charity organisations in the state only insofar as they fulfil equal criteria in every concrete case, with regard to which their position must not be worse only because these foundations and organisations are ecclesiastical.
In the constitutional complaint, the complainant alleged that, contrary to Article 13 of the Agreement, such a position prevents it from being treated equally in comparison with other non-governmental organisations when accessing public funds, and no grounds follow from the call for tenders that in view of the purpose of this call for tenders substantiate differentiation based on the disputed criterion between non-governmental organisations established on the basis of the mentioned laws, on the one hand, and the legal form of the complainant, on the other.
The Constitutional Court reviewed the challenged judicial decisions from the viewpoint of the right to equality before the law determined by the second paragraph of Article 14 of the Constitution, from which, inter alia, there follows the requirement that administrative authorities and courts treat essentially equal situations equally when deciding in concrete procedures. If they treat them differently, reasonable grounds objectively connected to the subject of legal regulation must exist for such. In the Decision, the Constitutional Court drew attention to the fact that in the assessment of which details and differences in the positions are essential, it must also be taken into consideration whether perhaps essentially different positions of legal entities are deemed to be equivalent by some rule established by ratified treaties.
In the assessment, the Constitutional Court took into account the second paragraph of the Agreement, which in the Republic of Slovenia ensures registered legal entities of canon law – from the viewpoint of their legal status – a position equivalent to that of legal entities founded on the basis of Slovene legislation, and Article 13 of the Agreement, which – as regards [tax] relief, aid, and other stimulus measures – deems charity and social ecclesiastical foundations and organisations whose field of activity is charity and social solidarity and that are organised in conformity with Slovene legislation to be equal to other similar charity organisations in the state. It held that from the legal status viewpoint, the mentioned provisions ensure the complainant, which is a registered ecclesiastical charity institution, a position equal to that of legal entities established under Slovene law. Therefore, mere legal status cannot entail reasonable grounds objectively connected to the subject of regulation that in respect of access to public funds for co-financing charity activities would allow for different treatment of the complainant in comparison with legal entities established under the law of the Republic of Slovenia.
The courts based the challenged judicial decisions on an interpretation that makes a distinction between the position of the complainant, a registered ecclesiastical charity institution, whose field of activity is charity work, and the position of other similar charity organisations in the state merely on the basis of its legal status. Thereby, they denied the complainant an equal position when invoking the right to obtain public funds for co-financing a charity activity – namely in comparison with other similar (non-governmental) charity organisations established on the basis of the regulations in force in the Republic of Slovenia governing legal status – merely on the basis of a circumstance that in view of Article 13 in conjunction with the second paragraph of the Agreement cannot entail a criterion for the different treatment of the complainant. Therefore, the Constitutional Court held that the challenged judicial decisions violated the complainant’s right to equality before the law determined by the second paragraph of Article 14 of the Constitution. The Constitutional Court annulled the challenged judgments and remanded the case to the Administrative Court for new adjudication.